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UPD2 UK ISPs React as ASA Start Enforcing New Broadband Advertising Rules

Sunday, April 1st, 2012 (12:14 am) - Score 1,723

The UK Advertising Standards Authority (ASA) and Committee of Advertising Practice (CAP) will, from today (Sunday 1st April 2012), officially begin enforcing a new set of guidelines that have been designed to clamp down on misleading ISP promotions of broadband internet access speeds and “unlimited” style usage allowances.

The new guidance (original news) has been designed to bring greater clarity to the market by requiring ISPs to provide a more honest account of both their service performance and flexibility to consumers. But the new rules are somewhat limited in their scope and could suffer due to a serious lack of strict enforcement measures (the ASA can only ban an advert and cannot impose any real fine or other penalty).

The New ASA Guidelines

Firsly, terminology like “unlimited” can now only be used if the customer incurs no additional charge or suspension of service as a consequence of exceeding a usage threshold associated with a Fair Usage Policy (FUP), Traffic Management or similar policy. The ASA also expects any limitations that affect the speed or usage of a service to be moderate and clearly explained in any advertisements.

A series of new rules have also been created to stop ISPs from advertising unachievable broadband speeds, which has a particular relevance for customers who subscribe to one of the dominant ‘up to’ 8Mbps (ADSL) or ‘up to’ 20-24Mbps (ADSL2+) based internet access services that are known for their highly variable (poor) performance.

New ASA Broadband Speed Rules

* An ISP should be able to demonstrate that its advertised speeds are achievable by at least 10% of users (this is expected to be reviewed every 6 months or so).

* Speed claims must also be accompanied by a warning, which references the fact that a significant proportion of subscribers receive a speed that falls considerably short of what consumers might reasonably expect the service to offer.

* In certain instances (e.g. ADSL2+ services) a significant proportion of an ISP’s customer base might receive a maximum speed that is much lower than the advertised maximum. When this happens a provider must qualify with a sort of “typical speed” range (e.g. “X% of our customers receive speeds between ??Mbit/s and ??Mbit/s”).

It’s useful to put these new guidelines into perspective. Ofcom’s latest November 2011 research into the country’s national average broadband ISP speeds (here) suggests that the change will not have much of an impact upon the new generation of superfast broadband products from BT, Virgin Media and others (Cable, Fibre Optic – FTTC, FTTH etc.).

Superfast broadband services tend to deliver a much faster and more reliable connection (i.e. according to Ofcom they advertised an average of 37.4Mbps and actually delivered 35.5Mbps), which means that related packages would still be able to promote their top speeds or at least very close to that.

But the situation for unreliable ADSL and ADSL2+ services, which are highly susceptible to copper telephone line related reliability and performance problems, couldn’t be more different. Ofcom’s data suggests that most 20-24Mbps (ADSL2+) services, which account for the vast majority of UK connections, can only deliver average real-world speeds of just 7Mbps.

That’s a huge difference and the ASA suggests that, under its 10% rule, ‘up to 14Mbps’ might be more viable for ADSL2+ providers but some ISPs could be forced a lot lower. Meanwhile 8Mbps (ADSL) would probably need to advertise as “at least 10% get 6Mbps“. The figure would vary between ISPs, which have incidentally given a mixed response to the change; but most are at least adapting

A BT Spokesperson told ISPreview.co.uk:

BT has moved away from advertising broadband with ‘up to’ speeds. Our latest Infinity adverts highlight comparisons instead, such as four times faster than Sky broadband, which is based on industry speed data.

We give bespoke speed estimates to all customers at the point of sale and this is now underwritten by the Code of Practice. No customer should be in any doubt as to the likely speed that they should expect from our service – before they make a purchase decision.”

An Entanet Spokeswoman told ISPreview.co.uk:

Whilst we strongly believe the new guidelines will only cause more confusion amongst end users and that the ASA/CAP have not adequately considered the impact on the wholesale model within the channel, we are of course complying with the guidelines and are currently working on a new report within synergi (our partner interface) that will provide our channel partners with the speed information they need to adhere to these guidelines from 1st April. We will also be carefully monitoring the market’s response to the guidelines and their impact in the market place once they have taken effect.

Additionally, we have concerns over ISPs rejecting orders from rural locations in a bid to keep their headline speeds high. Equally, these new guidelines are likely to affect ISPs that have a predominantly rural customer base, as they mayappear less attractive to potential customers when compared to national providers or those targeting urban areas where higher average speeds can be achieved.”

Jon James, Virgin Media’s Executive Director of Broadband, told ISPreview.co.uk:

More and more people are choosing fibre optic broadband and making the most of superfast speeds. Virgin Media continues to deliver the UK’s fastest broadband, over and above what we advertise according to Ofcom, and we’re about to boost the speeds of millions of homes yet again with our doubling upgrade and the introduction of 120Mb. It’s good to see Britain’s broadband speeds moving in the right direction and the new advertising rules will, for the first time, force our competitors to be more honest about their “up to 24Mb” claims. We hope they’ll try to keep up.”

Crucially the ASA/CAP expects all qualifications of broadband speed to be “prominent, appearing in the body copy of non-broadcast marketing communications” and the equivalent for claims appearing in broadcast advertisements. This is designed to make it harder for ISPs to hide any nasty’s away in the small print (T&C’s).

Furthermore the ASA told us that “upload speed claims should [also] conform to the guidance where relevant“. However upload speed is usually more reliable and most ISPs do not even promote this.

Overall consumers should benefit, provided all of the extra information is clearly displayed and explained. In an ideal world the rules would also make it easier to spot an underperforming provider but this could prove difficult, especially with some ISPs choosing to hide their “typical” performance figures behind a subscription process. That could potentially make it harder to compare providers.

UPDATE 2nd April 2012

Some new comments coming in.

Dana Pressman-Tobak, Managing Director of Hyperoptic, said:

This move from Committee of Advertising Practice will undoubtedly shake up the broadband industry, as consumers will now have factual average speeds revealed to them, rather than the theoretical “up to” speeds that providers have been relying on to date. With the average Briton struggling on a 7 mbps connection and in reality experiencing hugely reduced ‘lower than advertised’ speeds, it’s no surprise that the UK fails to make the world’s top 10 high-speed broadband countries.

This new legislation should go a long way to help remove the smoke and mirrors that happen within the broadband industry and help to differentiate new approaches. Internet service providers who operate their own networks and can therefore control speeds will be at a huge advantage. Hyperoptic, which has its own point to point FTTP network and can deliver genuine hyper-fast broadband, can now fully differentiate itself to other offerings on the market. The truth is, if you want to ensure you get the faster speed, every time, then the only answer is fibre.”

UPDATE 3rd April 2012

We’ve taken a quick look to see how ISPs are adjusting but confusion remains rife (here).

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By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on Twitter, , Facebook and Linkedin.
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